Leiden Law Blog

Back to the Moon and on to Mars: how to engage the public, youth, and funding

Back to the Moon and on to Mars: how to engage the public, youth, and funding Photo: NASA

The last time man went out to set foot on the Moon was on 7 December 1972, when the launch of Apollo 17 ended the program that inspired millions worldwide. A new US private commercial space venture went public on the eve of its 40th anniversary, on December 6, 2012. The Golden Spike Company plans to offer routine exploration expeditions to the surface of the Moon by 2020. A FaceBook page and Twitter feed were ‘live’ well before the announcement in order to create a buzz, whereas the website was unlocked only after the announcement.

Like Mars One, which plans to send humans to Mars by 2023 and recently became a Dutch not-for-profit foundation to attract private donations, Golden Spike plans to have significant public participation.

Space exploration

2012 saw considerable activity in private commercial space exploration, exploitation and launching ventures, as described in a previous blog. The legality of exploration of space is undisputed, as Article I of the 1967 Outer Space Treaty provides that outer space and the celestial bodies are free for exploration and use. Mars One (The Netherlands) and Golden Spike (USA) are ‘just’ planning to explore, so states allowing their activities will not violate international law – as long as the activities respect other principles of the treaties that ‘qualify’ this freedom. Activities must be carried out in accordance with international law (Art. III), for exclusively peaceful purposes (Art. IV), and must avoid harmful contamination of the celestial bodies (Art. IX), to name but a few. National space legislation may apply too – such as the Netherlands Space Activities Act (if launch, guidance or operation take place from the Netherlands) and the US Commercial Space Launch Amendment Act, as far as launch and re-entry from/to the USA are concerned. More detailed rules will be needed as the industry matures, such as operator’s liability towards clients (governments or private entities), third party liability, licensing, certification and insurance issues.

Appropriation and exploitation

However, appropriation of space or celestial bodies is not allowed, under Article II of the Treaty. It has been argued that the provisions of a treaty between states cannot bind private entities, but statements by the International Institute of Space Law in 2004 and 2009 have clarified that. In any case, Mars One and Golden Spike are not planning to appropriate (parts of) Mars or the Moon. Another recent company, Planetary Resources, plans to mine resources on asteroids for commercial profit, and here, the legal issues become a bit more complex. An analogy with the exploitation of resources of the High Seas comes to mind, where the International Seabed Authority was set up to manage commercial exploitation. Likewise, the (poorly ratified) 1979 Moon Agreement foresees the creation of a sharing mechanism once exploitation becomes feasible.

Engaging the public and youth

Taking into account recent decisions in the USA and Europe to radically cut NASA’s and ESA’s budgets for Moon and Mars exploration, we should actually be thankful for these pioneering companies. The only country that might be capable of a lunar mission anytime soon is China. Public institutions don’t do a very good job at engaging the public and motivating students for science, technology, engineering and mathematics (STEM) – while this would actually help secure public funding. After all, those students will need jobs, which necessitates investment in space. “Space is not an expense, it is an investment”, as the Chairman of SpaceNed said at an event co-organised with NVR analyzing the results of the recent ESA Ministerial Council.

Ventures like Mars One and Golden Spike inspire the youth and engage the public. That will eventually bring man back to the Moon and on to Mars. These pioneers must be able to operate in a clear and predictable legal environment; hence the usefulness of programs such as Leiden Law School’s adv. LLM in international air and space law.

4 Comments

Tanja Masson-Zwaan
Posted by Tanja Masson-Zwaan on December 21, 2012 at 15:27

Hi Adrian, I am not optimistic about either solution you propose. Since 1979, no new space treaties have been agreed, although there were enough topics that could have been regulated by treaty, such as space debris. We have to make do with UN guidelines instead. As in other areas, states are less willing to give up sovereignty, and consensus, the mechanism used by UN COPUOS, is hard to reach. Other forms of regulation, like non-binding guidelines are now more common. If we renegotiate the 1967 treaty, a lot of what was agreed then may not be possible now, and we would risk ending up empty handed. And, the treaty is not so bad, it allows private enterprise, you don’t need ownership of a celestial body to exploit resources, we just need implementing rules to regulate exploitation and avoid ‘wild west’ scenarios. I believe the most realistic way forward will be to agree on an international regulation of resource exploitation once this becomes feasible - not yet so today - and I see this happen in the form of guidelines or a code of conduct rather than a new treaty.

Adrian
Posted by Adrian on December 20, 2012 at 04:52

Hi everyone,

What do you think are the chances/possibilities that a new treaty could be written to replace the 1967 Outer Space Treaty which would clarify the legal issues which surround the issue of private industry and utilization of space resource? Would that be a better option than sorting out the legal issues created by the current treaty by creating amendments to it?

Adrian

Tanja Masson-Zwaan
Posted by Tanja Masson-Zwaan on December 8, 2012 at 22:50

Hello Stefan, thanks for your comment. Art. VIII of the Outer Space Treaty provides that “ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to Earth”. So while ownership of actual “territory” on the lunar surface is prohibited, a station built there or an object present there is subject to ownership, even if it is abandoned. About 20 years ago, Richard Garriott bought a lunar rover of the former USSR, the Lunokhod 2, auctioned by Sotheby’s.  In 2010 the rover was spotted on a photo; maybe someday he can go and visit it with Golden Spike!

Stefan Schaefer
Posted by Stefan Schaefer on December 8, 2012 at 20:42

Hi everybody,
what does the actual laws say about the property of buildings and pieces of land on celestial bodies?
Who owns an abandoned habitat, craft, probe, powerplant, greenhouse?
Who owns a landing site which has already been worked to build a base later?
The surface of celestial odies is no one’s land - so probes and robots like Viking and Curiosity are like flotsam? Is it possible, they could be removed / destroyed / sold as souvenir by anyone?

Thanks, Stefan

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